Mahoney v. United States

Opinion

USCA1 Opinion

November 29, 1995

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT


____________________



        No. 95-1708



                                   WILLIAM MAHONEY,



                                Petitioner, Appellant,



                                          v.



                              UNITED STATES OF AMERICA,



                                Respondent, appellee.


____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                        FOR THE DISTRICT OF RHODE ISLAND



                [Hon. Raymond J. Pettine, Senior U.S. District Judge]
                                          __________________________



                                 ____________________



                                        Before



                                Selya, Stahl and Lynch,

                                   Circuit Judges.
                                   ______________



                                 ____________________



            William Mahoney on brief pro se.
            _______________

            Sheldon Whitehouse, United  States Attorney,  Margaret E.  Curran,
            __________________                            ___________________

        Assistant United  States Attorney,  and Lawrence D.  Gaynor, Assistant
                                                ___________________

        United States Attorney, on brief for appellee.


____________________


____________________



Per  Curiam.   We affirm  substantially for  the reasons
                 ___________



            stated  in  the magistrate-judge's  May  5,  1995 report  and



            recommendation.  We add the following.



                 1.   We  reject petitioner's  argument that  no criminal



            history  point  should  have  been  added  for  the  offenses



            described in  paragraph 34 of  the presentence report.   That



            paragraph  plainly  states   that  petitioner  received   the



            "minimum sentence" after pleading nolo  contendere to driving
                                              ________________



            under the influence.  Consequently, this offense was properly



            counted  in petitioner's  criminal  history under  U.S.S.G.  



            4A1.1(c),  which directs a point  to be added  for each prior



            sentence (up to a total of four points).
            ________



                 2.   There is  no  merit to  petitioner's argument  that



            counsel was  ineffective in failing  to argue for  a downward



            departure  under   U.S.S.G.     4A1.3  on   the  ground  that



            petitioner's  criminal  history category  significantly over-



            represented the seriousness of petitioner's  criminal history



            or  the  likelihood  that  petitioner  would  commit  further



            crimes.    Section  4A1.3  gives  as   an  example  of  over-



            representation   a  defendant  with   two  minor  misdemeanor



            convictions  close  to  ten  years old  and  no  evidence  of



            intervening criminal behavior.   Petitioner's history is  not



            at  all comparable to the  example.  He  had five potentially



            countable misdemeanor  convictions (only four  of which  were



            counted in view  of   4A1.1(c)'s  four point limitation)  and


-2-



his  criminal  history  spanned  many  years.    Petitioner's



            criminal history was not over-represented and counsel did not



            provide  ineffective  assistance  in  failing  to  advance  a



            meritless argument.



                 Affirmed.
                 ________


-3-